What McCain Giveth, Graham Taketh Away

As all the newspapers are reporting, President Bush has agreed to John McCain’s amendment prohibiting torture. However, Newsweek adds this:

“But the Bush administration may still secure something of a victory in the Graham bill. According to an amended draft of the measure being circulated Thursday among the sponsors, Graham has agreed to language that loosens the restrictions on terror evidence that?s obtained through ?coercive? interrogations that may occur in other countries. Whereas Graham?s previous draft had forbidden the use of such evidence?in accordance with standard rules of military justice?the new draft says that it should be barred only ?to the extent practicable.? The latest bill language also now says that the ?probative value? of evidence should be considered?in other words, whether the information is persuasive.

In theory, this would permit U.S. military tribunals to use evidence obtained through torture or abuse in the prisons of other countries. The new Graham draft also adds more restrictions on the rights of terror detainees to sue or launch an action against the U.S. government outside of a narrow appeals process.

Wes Hickman, a spokesman for Graham, said he had no immediate comment on the negotiations. However, a Republican Senate aide who spoke on condition that he would not be named conceded that new language had toughened the bill. “There was a clause in the original bill that said the [tribunals] had to exclude any statements that were the result of torture or coercion. Now that’s been changed to a ‘consideration’ clause that says the tribunal board must take into account the source of the information.” He contended the change had been requested by military judge advocates general.”

So: instead of banning the use of evidence obtained through torture, tribunals have to ‘consider’ the source of that information. Great.

The Graham amendment already strips Guantanamo detainees of their right to file for habeas corpus. (For more info, see the series Katherine and I wrote on it at Obsidian Wings. Links to most of the posts are here.) The amendment adopted by the Senate did allow detainees to appeal tribunal findings to the courts, but that doesn’t get at one of the most important functions of habeas corpus: the right to ask why you’re being held when the government has either held no hearing at all, or held one and found you innocent. And we are holding people who have been found innocent by tribunals. I wrote about one such case here.

Now, Graham is jettisoning one of the few good provisions in his bill: its ban on the use of evidence gained through torture. As Scott Horton of Balkinization wrote:

“In the history of the American Congress, this would mark its first acceptance of torture as a technique and blessing on the use of its fruits.

Coming after an 18-month public debate over torture policies at the end of which a solid consensus has formed against the Administration?s viewpoint, this would be a shocking result.”

If you oppose this change to the Graham Amendment, call your Senators and Representatives. This is especially important if you live in the district of one of the conference committee members. I’ve put a list of them below the fold.